11-30-'16 14:45 From- 304-577-6821 T-941 P0002/00C5 F-015 / J
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11-30-'16 14:45 FROM- 304-577-6821 T-941 P0002/00C5 F-015 / J IN THE PUBLiC SERVICE COMMISSION OF WEST ViRGINIA, CHARLESTON CASE NO. 16-0548-G-C CHARLES W. BIRKS, Walton, Roane county Complainant V. MOUNTAINEER GAS COMPANY, A public utility Defendant EXCEPTION Complainant objects to dismissal. Application of Constitutional Rights The 4th Amendment to the U.S. Constitution as interpreted for West Virginia by our Supreme Court in Orteza is cited in Recommended Decision at page 11 to describe the test for application to be "direct connection or nexus between state regulation and the challenged act". Judge Minney describes his opinion as essentially a separation of gas co. actions from State directives, and so, fails the test via a conclusion that the gas co. supplied the standards and procedures for the mandatory safety inspection/entry to homes. It remains the Complainant's position that the 4th Amendment DOES apply to the PSC regulatory process and none of the cited law so much as nears the intimate relationship between the regulated and the regulator. The "direct connection" could be tested thus, if PSC orders the gas to. to cease the entry for inspection demand made against its existing customers and rely instead upon the inspection process ALL service addresses must undergo at the time of first establishing a customer's service, does the gas co. obey? The nexus point, then, is that joint desire to force compliance with the invasive safety inspection following a belief that greater public safety may resuit. The complainant believes Judge Minney has erred in the conditional analysis of how best to preserve and defend our 4th Amendment protections. An enquiry made by PSC to a Judge within our many Courts of Law could potentially provide guidance, 11-30-'16 14:45 FROM- 304-577-6821 T-941 P0003/0005 F-015 From Wikipedia, "One threshold question in the Fourth Amendment jurisprudence is whether a "search" has occurred. Initial Fourth Amendment case law hinged on a citizen's property rights-that is, when the government physically intrudes on "persons, houses, papers, or effects" forthe purpose of obtaining information, a "search" within the original meaning of the Fourth Amendment has occurred." In support of rhe 4th Amendment, Complainant offers broader law cites to show applicability beyond just our homes: a. Regarding Privacy as issue - Katz v. United States (1967) was a phone booth wiretap case in which protected personal privacy became definable by The Supreme Court of the United States. From Wikipedia, A "search" occurs for purposes of the Fourth Amendment when the government violates a person's "reasonable expectation of privacy". Thar personal expectation of privacy became better defined in Smith v. Maryland (1979) with a rest: 1. a person "has exhibited an actual (subjective) expectation of privacy"; and 2. society is prepared to recognize that this expectation is (objectively) reasonable. b. Regarding application to the individual States - Mapp v. Ohio (1961), The Supreme Court of the United States ruled that the 4th Amendment applies to the States by way of the Due Process Clause of the 14th Amendment. Address to other matters within the Recommended Decision 1. Within the Service lnterruotion Notice section of Recommended Decision at page 9, the contemplated reasonable actions by the gas co. considering the present rule "does not prescribe a particular form of notice ...'I. Having evidently accepted the story told regarding the unlikely status of service as off, Judge Minney continues, "Under these circumstances, Mountaineer appears to have acted reasonably.". Then, Judge Minney commits to an inconsistent treatment of Complainant's case with words which would be insignificant as a command to change gas co. procedure, "Mountaineer, however, should make every effort to inform customers of meter changes under the pilot program approved by the Commission including notice by mail or bill insert where appropriate.". Complanants experience (of 19 years) is that the gas co. has no permanent memory or service category to describe second residence customers. Withour gas co. recognition of second residences as a category, Complainant wonders, what is the meaning therein of "appropriate"? Complainant maintains where the regulatory rule provides forms of notice that do not assure notice of service interruptions to second residence customers, the rule should be changed. The Complainants suggestion would be to order a line to be added to those service addresses containing words, "Second 11-30-'16 14:45 FROM- 304-577-6821 T-941 P0004/0005 F-015 Residence" and command that whenever the service address appears in description by/within the gas to. the added line must appear. The meaning of "appropriate" may then be obvious for written notice requirements to second residence billing addresses. 2. The unfortunate casualty is often the truth. The rule in 4.12 describes REQUiRED prior notice and Complainant maintains that rule was violated by the unlikely service status "off" as conclusion.The elevation of such a simple lie to provide basis for dismissal of the complaint, assures more lies will challenge truth in the future. The simple TV justice version of gradation relies on, "If it doesn't make sense, it isn't true.", the reasons behind why such an unlikelihood during an ongoing heating season in March has such sway, are beyond Complainant's comprehension. 3. in the Evidence section of Recommended Decision at pages 2 through 8 Clarity of purpose can not be provided to gas co. customers where the meanings of different words denoting conditions within the life of a gas service at a service address are merged into one meaning. Different words like, for example, establish, reconnect, restore, existing, etc. , have different meanings to the safety inspection descriptions and procedures within the National Gas Code. Judge Minney, is necessarily aware of the confusion of meanings by both PSC Staff and gas to. witnesses. That matter is demonstrated in the Hearinglranscript in too many places for any of us to be comfortable. Judge Minney, repeatedly asks of both witnesses, "Where does it say no inspection, no gas?". Complainant recalls the answers were always reliant on the words denoting different conditions as undifferentiated. Complainant finds no 4th Amendment violation in the gas to. exhibit 1until the meanings are muddled in the practice to force inspections or tests on existing customers that do not apply to restoration of service for those customers following service interruptions. In the Discussion section, Judge Minney, produced no contemplation of defining the terms. The nearest contemplation is at page 7, end of 3rd paragraph, "The current Complaint relates to a "turn on".". The Complainant reiterates objection to the service status lie (item 2. above) as basis for that conclusion. The Complainant maintains the complaint relates to what would be a restoration of service after a meter change. Because the applicability of these different tests/inspections is at issue and the consequence to confusion of meanings is evident, Complainant suggests PSC create a table of meanings to apply within gas co. regulations. At page 7, Recommended Decision, 2nd to last paragraph, Judge Minney describes part of the Hearing testimony and affirms "Propane is heavier than air."; and, words to the effect that the responsibility for safety would be someone else's. Complainant maintains that no natural gas alternative-fuel best suits a home design with a fully-below-grade basement. We ail know natural gas is lighter than air and generally diffuses harmlessly away in the event of a minor leak. The event of a minor propane leak pooling in a basement unrecognized, in contrast, has potentially catastrophic consequences well beyond asphyxiation risk, alone. The interests of Public Safety are not served by reducing Complainant to use propane, even if only for the cook stove and oven (as is anticipated). 11-30-'16 14~46FROM- 304-577-6821 T-941 P0005/0005 F-015 .~ Conclusions Subjecting existing gas co. customers to PERPETUALHOME-INVASIVE INSPECTION following service interrruption by whatever cause is an affront to citizen personal privacy protections of the 4th Amendment of the US. Constitution, in part, because the PSC is a State agency joined in nexus and charged to regulate and control gas co. behaviors , The PSC is subject to and is the nearest State entity to preserve and defend those citizen Rights. Complainant remains willing that dial-pressure test be conducted (as the only inspection test applicable to restoration for existing customers). That test can be conducted from the meter set at any time in perpetuity subsequent to incident-notification lead-time sufficient for Complainant to have closed the main sysrem-valve in the house. Complainant need not be present forthe test and that system-valve is presently closed. Complainant insists that to remain a gas co. customer, the subject issues of the complaint (as above) be addressed and regulated by PSC. Respectfully submitted by fax transmission to the Executive Secretary. Documenr Service to parties to thereafter take place electronically from that source. Charles W. Birks date .